Rule 3.956.Review Hearings; Probation Violation

MCR 3.956 picks up where a delayed sentence leaves off. Once the court has entered an order of disposition delaying imposition of sentence, this rule supplies the schedule of reviews, the notice and counsel that come with them, what the prosecuting attorney has to prove, and the consequences of a probation violation.

When reviews happen

Subrule (A)(1) frames every review around two questions: whether the juvenile has been rehabilitated and whether the juvenile presents a serious risk to public safety. Subrule (A)(1)(a) sets four occasions:

• An annual review of the probation, covering the services provided, the placement, and the juvenile's progress in it. The court must examine any report prepared under MCL 803.223 and any report from the officer or agency supervising probation, and it may order changes in probation, including imposition of sentence.
• A review on request. An institution or agency to which the juvenile was committed that believes the juvenile has been rehabilitated and presents no serious risk to public safety may petition for a review hearing any time before the juvenile becomes 19 years of age, or before 21 if the court has extended jurisdiction.
• A mandatory review, scheduled to be held within 42 days before the juvenile attains the age of 19, unless adjourned for good cause.
• A final review of the probation, held not less than 91 days before the probation period ends.

Notice, counsel, and proof

Subrule (A)(1)(b) requires notice at least 14 days before the hearing to the prosecuting attorney, the agency or the superintendent of the institution or facility holding the juvenile, the juvenile, and the parent, guardian, or legal custodian if the address or whereabouts is known. The notice must state clearly that the court may extend jurisdiction or impose sentence, and must advise the juvenile and the parent, guardian, or legal custodian of the right to an attorney. Subrule (A)(2) then requires the court to appoint an attorney unless one has been retained, and allows the cost to be assessed against the juvenile or those responsible for the juvenile's support if they are financially able to comply.

Under subrule (A)(4)(a) the prosecuting attorney must demonstrate by a preponderance of the evidence that the juvenile has not been rehabilitated or presents a serious risk to public safety before the court may continue jurisdiction or impose sentence. The Michigan Rules of Evidence, other than those on privileges, do not apply, and seven listed factors guide the call: participation in education, counseling, or work programs; willingness to accept responsibility for prior behavior; behavior in the current placement; prior record, character, and physical and mental maturity; potential for violent conduct as shown by prior behavior; the recommendation of the institution, agency, or facility charged with the juvenile's care; and any other information the prosecuting attorney or the juvenile submits. To impose a sentence at the final review hearing, subrule (A)(4)(b) requires the court to determine that the best interests of the public would be served by a sentence provided by law for an adult offender, weighing three further considerations on top of those criteria: the effect of treatment on rehabilitation, whether the juvenile is likely to be dangerous to the public if released, and the best interests of the public welfare and the protection of public security.

Probation violations

Subrule (B)(1) leaves the court no discretion when the violation is a conviction of a felony or a misdemeanor punishable by imprisonment for more than 1 year, or an adjudication of responsibility for an offense that would be one of those if committed by an adult. The court must revoke probation and sentence the juvenile to a term no greater than the penalty available for the offense for which the juvenile was originally convicted and placed on probation.

Any other violation falls under subrule (B)(2), where the court may impose sentence or instead order a change in placement, community service, substance abuse counseling, mental health counseling, a vocational-technical program, incarceration in the county jail for not more than 30 days on the conditions the subrule sets out, or other participation or performance it considers necessary. The hearing follows MCR 3.944(C), and under subrules (A)(5) and (B)(4) a juvenile who receives a sentence of imprisonment gets credit for time served on probation.

Nonpayment

Subrule (C) bars detaining or incarcerating a juvenile or a parent for nonpayment of court-ordered financial obligations unless the court determines that the person has the resources to pay and has not made a good-faith effort to do so.